Rule 8(c) of the Rules Governing § 2254 Cases in the United States District Courts provides for appointment of counsel for a petitioner "if an evidentiary hearing is required . . . [or] if the interest of justice so requires." Further, 28 U.S.C § 1915(d) provides:

The court may request an attorney to represent any [indigent] person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.

In exercising its discretion to appoint counsel to indigents in civil cases, the Court is guided by the factors set forth in Cooper v. A. Sargenti Co., Inc., 877 F.2d 170 (2d Cir. 1989), and Hodge v. Police Officers 802 F.2d 58 (2d Cir. 1986). Under those cases, the Court should "first determine whether the indigent's position seems likely to be of substance." Hodge, supra, 802 F.2d at 61. Only if the claim meets this threshold requirement should the Court consider "secondary" criteria, such as the indigent's ability to obtain representation independently, his or her ability to handle the case without assistance in light of the required factual investigation, the complexity of the legal issues, and the need for expertly conducted cross-examination to test veracity. Cooper, supra, 877 F.2d at 172.

In making the threshold inquiry in this case, it has become clear from my review of the state court records filed with Respondent's answer that Petitioner has failed to exhaust his state court remedies as to the claims presented in this petition. I therefore deny Petitioner's request for appointment of counsel, and recommend that the petition be summarily dismissed by the District Court in accordance with the Habeas Corpus Rules.

BACKGROUND

Petitioner was convicted of criminal possession of a forged instrument in the second degree, attempted petit larceny, and criminal possession of stolen property in the fifth degree, after a jury trial in New York State Supreme Court. He was sentenced as a second felony offender to concurrent prison terms of three and one-half to seven years. Petitioner was subsequently released on parole but remains "in custody" for the purposes of a habeas corpus petition under § 2254. See, e.g., Jones v. Cunningham, 371 U.S. 236, 9 L. Ed. 2d 285, 83 S. Ct. 373 (1963)).

The jury also heard the testimony of Robert Kistner, who was qualified by the trial court as an expert witness in handwriting (T. 413-14). Mr. Kistner testified that he examined the check written in the name of Thomas Twist, compared it to a handwriting exemplar obtained from Petitioner, and determined that Petitioner "probably authored" the front portion of the check (T. 421). The check and handwriting exemplar were admitted as evidence in the case (T. 403-06; 420), and were available to the jury for their inspection (T. 448-49). Mr. Kistner also testified that he "was being ultra conservative when [he] gave an opinion of probable authorship; that [he] could have easily given an opinion of highly probable . . ." (T. 449).

On March 16, 1989, after Petitioner's trial, Lawrence Evans signed an affidavit in which he stated that, on or about February 21, 1988, in exchange for a promise of a reduced sentence, he told the prosecuting attorney that he did not know Petitioner, and that it was not Petitioner but another individual involved in the "check ring" (State Court Records, Exh. B). Evans did not testify at Petitioner's trial.

On April 4, 1989, Petitioner moved to set aside the verdict and vacate the judgment based on the information contained in the Evans affidavit. Petitioner claimed that the prosecution knew about this exculpatory evidence prior to trial, but failed to disclose it under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). Petitioner also claimed that the Evans affidavit contained new evidence which, had it been presented to the jury, would have resulted in a more favorable verdict. This motion was summarily denied by the trial court on April 24, 1989 (S. 2-6).

On April 28, 1989, Petitioner filed a notice of appeal. As grounds for the appeal, Petitioner argued (1) that the trial court committed reversible error by denying his motion to set aside the verdict based on the prosecution's failure to disclose Brady material, (2) that the trial court erred by admitting evidence of uncharged crimes, and (3) that he was denied his constitutional right to effective assistance of counsel (State Court Records, Exh. A).

In a memorandum order dated June 22, 1990, the Appellate Division, Fourth Department, denied Petitioner's appeal. People v. Brown, 162 A.D.2d 1030, 557 N.Y.S.2d 812 (4th Dept., June 22, 1990). According to the Court, Petitioner was not entitled to a new trial based on a Brady violation, or based on newly discovered evidence, since he failed to show that there was a reasonable probability that the result of the trial would have been different had the evidence been disclosed. Id., 162 A.D.2d at 1031, 557 N.Y.S.2d at 813.

By letter dated July 26, 1990, Petitioner applied for a certificate granting leave to appeal, in which appellate counsel set forth the same grounds as presented to the Appellate Division (State Court Records, Exh. D). The New York Court of Appeals denied leave to appeal. People v. Brown, 77 N.Y.2d 836 (January 4, 1991).

The exhaustion doctrine also requires that a habeas petitioner seeking to upset his or her state conviction on federal grounds must first give the state courts a fair opportunity to pass upon all of the federal claims asserted in the petition. Id. at 191; Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982). In order to have fairly presented federal claims to the state courts, the petitioner must set forth in state court all of the essential factual allegations and legal doctrines asserted in the federal petition. Daye, supra, 696 F.2d at 192-93. This requirement is satisfied, even where specific federal constitutional provisions or caselaw have not been cited, if the nature or presentation of the claim in state court was likely to alert that court to the claim's federal nature. Id. at 192. As the Second Circuit stated in Daye:

In summary, the ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, include (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of fact that is well within the mainstream of constitutional litigation.

Id. at 194.

Where a habeas corpus petition contains both exhausted and unexhausted claims, the petition must be dismissed. Rose v. Lundy, 455 U.S. 509, 522, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982). Petitioner then has the choice of returning to state court to litigate the unexhausted claims or refiling the petition in federal court with only the exhausted claims. Petrucelli v. Coombe, 735 F.2d 684, 687 (2d Cir. 1984).

For the reasons set forth below, I find that petitioner failed to exhaust his state court remedies as to his second claim relating to admitting evidence of uncharged crimes. Under Rose v. Lundy, the petition therefore should be dismissed.

In his state court appeal, Petitioner first argued that the failure of the prosecution to disclose the exculpatory information given by Mr. Evans to prosecutors prior to Petitioner's trial was reversible error under the constitutional doctrine set forth in such federal cases as Brady and Giglio v. United States, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972). This claim has been exhausted, since the factual and legal basis asserted adequately alerted the state courts to the federal constitutional nature of the claim.

Finally, Petitioner argued to the state courts that evidence of his prior criminal acts -- specifically, testimony about his alleged involvement in an ongoing check forging scheme -- should not have been admitted at trial, based on the doctrine established by People v. Molineux, 168 N.Y. 264, 61 N.E. 286 (1901), and subsequent New York cases. The Molineux doctrine is grounded in a fundamental, common-law rule prohibiting the use of evidence of uncharged crimes to show predisposition to commit the crime charged. See generally id.; see also People v. Lewis, 69 N.Y.2d 321, 325, 514 N.Y.S.2d 205, 506 N.E.2d 915 (1987). The rule is codified at Rule 404(b) of the Federal Rules of Evidence,
*fn3"
and is no doubt familiar to all trial and appellate judges, state and federal.

However, Petitioner's assertion of this common-law or statutory authority as grounds for reversible trial error did not sufficiently put the state courts on notice of a federal constitutional claim. For one thing, a defendant's claim that he was denied a "fair trial" does not automatically convert a complaint about admission of other crimes evidence into a federal due process claim. Kirksey v. Jones, 673 F.2d 58, 60 (2d Cir. 1982). Instead, the court must look to the factual allegations supporting the claim to determine whether a constitutional violation is involved. Daye v. Attorney General, supra, 696 F.2d at 193. According to the Second Circuit in Daye:

Some [denial of fair trial claims] will be of patently constitutional dimension. If the defendant claimed that he was accused of one crime but convicted of an entirely different crime and hence was denied a fair trial, no reasonable jurist would doubt that the defendant's claim implicated his right to due process of law. In contrast, a defendant's claim that he was deprived of a fair trial because of the admission in evidence of a statement objectionable as hearsay would not put the court on notice that the defendant claimed a violation of his constitutional right to be confronted by his accusers.

Id.

Moreover, a claim that a trial court abused its discretion by allowing proof of other crimes does not alone call to mind a doctrine of due process, double jeopardy, or some other specific right protected by the constitution, "but the common law statutory authority that evidence as to prior crimes may be excluded where it is more prejudicial than probative." Petrucelli v. Coombe, supra, 735 F.2d at 688 (citing People v. McCleaver, 78 Misc. 2d 48, 354 N.Y.S.2d 847 (N.Y. Sup.Ct. 1974)).

In this case, Petitioner did not rely on any pertinent federal cases in support of his "other crimes evidence" claim in the state courts, nor did he indicate any reliance on state cases employing a constitutional analysis of this claim on similar facts. As pointed out by the Second Circuit in Petrucelli, while a habeas petitioner need not cite "book and verse" of the federal constitution, "he is on much safer ground if he explicitly identifies his federal constitutional arguments to the state courts." Petrucelli v. Coombe, supra, 735 F.2d at 689.

The parties are reminded that, pursuant to Rule 30(a)(3) of the Local Rules for the Western District of New York, "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 30(a)(3) or with the similar provisions of Rule 30(a)(2) (concerning objections to a Magistrate Judge's Decision and Order), may result in the District Court's refusal to consider the objection.

Let the Clerk send a copy of this Order and a copy of the Report and Recommendation to the Petitioner and the attorney for the Respondent.

So Ordered.

CAROL E. HECKMAN

United States Magistrate Judge

DATED: Buffalo, New York

April 1, 1993

Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.

Buy This Entire Record For
$7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.